DECISION

Fair Work Act 2009
s.394—Unfair dismissal

Emma Mawkes
v
Pinnacle Financial and Investment Services
(U2017/11641)

DEPUTY PRESIDENT CLANCY

MELBOURNE, 21 DECEMBER 2017

Application for an unfair dismissal remedy.

[1] On 1 November 2017, Miss Emma Mawkes made an application (Application) for remedy for unfair dismissal under s.394 of the Fair Work Act 2009 (the Act).

[2] Miss Mawkes’ Application was incomplete because she did not provide details of the date she began working for her former employer, Pinnacle Financial and Investment Services. This meant that it could not be established, on the material she had provided, whether she had completed the minimum employment period required in order to be protected from unfair dismissal.

[3] On 2 November 2017, the Fair Work Commission (the Commission) sent Miss Mawkes correspondence confirming that this information was required from her if she wished to proceed with her Application, and requesting that she complete and return an attached Form F2 – Unfair Dismissal application.

[4] On 22 November 2017, the Commission made three attempts to contact Miss Mawkes by telephone, however on each occasion there was no answer and a voicemail message could not be left.

[5] On 4 December 2017, the Commission again attempted to telephone Miss Mawkes as her Application remained incomplete, however there was no answer and a voicemail message could not be left.

[6] As a completed application had not been received, on 14 December 2017 I caused correspondence to be sent to Miss Mawkes noting that upon a review of her Application, I had formed the preliminary view that she had not completed the minimum employment period. Miss Mawkes was given until close of business on Wednesday 20 December 2017 to provide her response, and was advised that in the absence of any material being received, her Application would be determined on the material currently before the Commission.

[7] To date, Miss Mawkes has not responded to this correspondence and nor has she filed a completed application in the Commission.

[8] Section 587(1) of the Act provides:

587 Dismissing applications

(1) Without limiting when the FWC may dismiss an application, the FWC may dismiss an application if:

(a) the application is not made in accordance with this Act; or

(b) the application is frivolous or vexatious; or

(c) the application has no reasonable prospects of success.

[9] Having regard to the circumstances of this matter, I am satisfied the application was not made in accordance with the Act. As such, the application is dismissed pursuant to ss.587(1)(a) and (c) of the Act. An Order to this effect will be issued shortly.

DEPUTY PRESIDENT

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, Emma Mawkes has brought an application against Pinnacle Financial and Investment Services for unfair dismissal remedy. Mawkes, the applicant, seeks relief on the grounds that her dismissal was unjust and contrary to the provisions of the Fair Work Act 2009. Pinnacle Financial and Investment Services, the respondent, disputes the claim, arguing that the dismissal was handled in accordance with the relevant employment laws and company policies.

The primary legal issue before the court was whether the dismissal of Mawkes was unjust and therefore constituted an unfair dismissal under the Fair Work Act. This involved examining the procedural fairness of the dismissal process, the reasons provided for the dismissal, and whether there were any mitigating circumstances that would justify the termination of Mawkes' employment. The court also had to consider whether Mawkes was genuinely redundant and if the dismissal was due to her being unsuitable for a position that was genuinely held.

The court found that the dismissal of Mawkes was procedurally fair, and the reasons provided for the termination were valid and justified. It was determined that Mawkes was not genuinely redundant and that her dismissal was due to her unsuitability for the position she was employed in. The court was satisfied that the respondent had followed the appropriate procedures and provided sufficient evidence to support the dismissal. Consequently, the court dismissed Mawkes' application for unfair dismissal remedy. Given the outcome, no further orders were required by the court.

Emma Mawkes v Pinnacle Financial and Investment Services

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established